Court File and Parties

Court File Number: 2760 999 120113 Date: 2012-11-08 Ontario Court of Justice

Between: Her Majesty the Queen — AND — Craig Harvey

Before: Justice of the Peace R. J. Le Blanc

Heard: August 23, 2012, Ontario Provincial Offences Court, Campbellford

Written Decision Released: November 8, 2012, Provincial Offences Court, Brighton

Counsel:

• Peter Sutton for the Crown
• Craig Harvey, self-represented defendant

Decision

JUSTICE OF THE PEACE LE BLANC:

The Charge

[1] Self-represented defendant Craig Harvey stands charged with a single count contrary to section six of the Private Security and Investigative Services Act by acting as an unlicensed private investigator between January 1, 2010 and July 20, 2011.

[2] Mr. Harvey pleaded not guilty to the charge in the Campbellford Provincial Offences Court on August 23, 2012.

[3] Essentially the case comes down to a single question: Was Mr. Harvey required to be a licensed private investigator in Ontario given he undertook certain investigations regarding a municipal tax sale of a property in Trent Hills, later using the information he gathered to find and approach the original owner and offer to recover any surplus from the tax sale in exchange for a fee?

Undisputed Facts

[4] A pre-trial was held and while there wasn't a prepared statement of facts it became apparent at the conclusion of the trial that there is no dispute as to Mr. Harvey's identification nor the fact Mr. Harvey was not a licensed paralegal at any time (exhibit one). There is no dispute as to Mr. Harvey undertaking an investigation of the property to be sold in terms of liens or mortgages against it; or in his undertaking an investigation to determine the owner of the property.

[5] What is in dispute between the parties is whether Mr. Harvey was required to be a private investigator in order to take information he gathered -- ostensibly in his own failed bid on the property which was sold for back taxes – and approach the former property owner with an offer to recoup any surplus, to be split 50-50 (exhibit three).

[6] Eventually the original owner of the property, Christina Mechetuk, would receive a cheque for $26,913.57 as half of the surplus proceeds of the tax sale (exhibit two).

Relevant Legislation

[7] The Private Security and Investigative Services Act, 2005, (exhibit four) defines a private investigator, under section (2) as "a person who performs work, for remuneration, that consists primarily of conducting investigations in order to provide information."

[8] Mr. Harvey finds himself charged specifically under section (6) of the act, which reads, "Soliciting or procuring services: a person who performs work, for remuneration, that consists primarily of acting for or aiding others in soliciting or procuring the services of a private investigator or security guard shall be deemed to be in the business of selling private investigator or security guard services."

[9] Exemptions listed under section (7) of the act including barristers or solicitors engaged in their profession; persons who receive remuneration for searching for and providing information on financial credit ratings or qualifications and suitability of applicants as prospective employees or for insurance or indemnity bonds; for peace officers; for insurance adjusters licensed under the Insurance Act, for providing non-remunerated advice on security requirements; for persons providing an armoured vehicle service and for locksmiths.

[10] Remunerative work is described in section (8) as "performing work for remunerations includes performing work pursuant to an agreement that provides that the remuneration paid is contingent, in whole or in part, on completion of the work."

[11] Under part III of the act, section (6) reads "no person shall act as a private investigator or security guard or hold himself or herself out as one unless the person holds an appropriate licence under this act."

Crown's Evidence

[12] Ontario Provincial Police Detective Constable Marc Lapointe testified he was acting on a private complaint when he laid the charge against Mr. Harvey.

[13] Det. Const. Lapointe said Mr. Harvey undertook an investigation into a Trent Hills tax sale. The Ontario Municipal Act allows a municipality to seize and sell a property -- following a given period of time and under certain conditions -- in order to collect back taxes owed.

[14] The complaint to police alleges Mr. Harvey, of the Greater Napanee Area, undertook several investigations before offering to recoup any financial surplus from the proceeds of the tax sale on behalf of the original owner, Christina Mechetuk. An agreement was signed (exhibit three) providing Mr. Harvey with half of any surplus recovered from the tax sale. Mr. Harvey would be responsible for any legal fees incurred in doing so.

[15] Det. Const. Lapointe said Mr. Harvey undertook several investigations, including: searching for and determining the property had fallen into tax arrears and was in jeopardy of being sold; determining if the property was free and clear of any liens; locating and approaching the rightful owner, Christina Mechetuk.

[16] Det. Const. Lapointe said tax sales are advertising in the Ontario Gazette, local newspapers, and on the Municipality of Trent Hills website. The property to be sold is identified only as being part of a lot number in the municipality.

[17] Det. Const. Lapointe said Mr. Harvey was able, through his own investigative techniques, to determine the residential address of the property, and the owner's name. Mr. Harvey used that information, he said, to introduce himself to Ms. Mechetuk, and to suggest she enter into a contract to recoup half of any tax sale surplus.

[18] The property was sold in June of 2010 and Ms. Mechetuk moved into Campbellford. Det. Const. Lapointe said Mr. Harvey had to begin another investigation to determine Ms. Mechetuk's new address, and he contacted her in April of 2011 in order to have her attend a lawyer's office in Belleville to sign documents necessary to recover a $52,000 surplus from the tax sale. Ms. Mechetuk would eventually receive a cheque for more than $26,000 – her half of the surplus.

[19] Det. Const. Lapointe said he contacted Mr. Harvey on January 26, 2012 by telephone. Mr. Harvey made several statements to the officer during the telephone interview.

[20] Mr. Harvey was provided with an opportunity to review the statements the Crown wished to rely on, and agreed he made the statements and did so voluntarily, eliminating the requirement for a voir dire.

[21] Det. Const. Lapointe said Mr. Harvey said he did not feel he had broken the law, adding he had 'no idea' that what he was doing was wrong; that he was not paid for doing research.

[22] Mr. Harvey admitted to Det. Const. Lapointe that he had never met Christina Mechetuk prior to approaching her, and admitted to having a signed agreement with her.

[23] Det. Const. Lapointe said further investigation determined that Mr. Harvey paid the Municipality of Trent Hills for documentation on outstanding liens or titles to the property. He said he Mr. Harvey placed a sealed bid for the property, but was not the successful bidder.

[24] Det. Const. Lapointe said Mr. Harvey was at no time a licensed private investigator, thereby contravening section 2(2) of the Private Investigator's Act by being a person who performs work by gathering information for remuneration. Such information would include, under subsection (c) the whereabouts of a person or property.

[25] Det. Const. Lapointe said Mr. Harvey used investigative techniques to determine a property was in jeopardy and that it had a monetary value.

[26] Det. Const. Lapointe said Mr. Harvey contravened the regulation by conducting a search on title through the Municipality of Trent Hills to determine that the property was free and clear of liens; by performing a search to determine the physical residential address of the property and the name of the owners; and by searching for and locating Christina Mechetuk to present her with a contract for services. He contravened the regulation when he received payment for recouping any surplus of the tax sale, benefitted financially from his investigative searches, the officer alleges.

[27] The officer said he is confident Ms. Mechetuk did not have the ability to recoup any surplus from the tax sale without Mr. Harvey's help, but added, "This doesn't make it right."

Defence Evidence

[28] Mr. Harvey told the court said he had never met Christina Mechetuk prior to May 7, 2010. He did so only after making an unsuccessful bid to purchase her property through a municipal tax sale on May 6, 2010.

[29] Mr. Harvey readily admits he attended the Municipality of Trent Hills on May 5, 2010 to conduct research prior to making his bid. Mr. Harvey said he has attended tax sales in the past and purchased properties in this manner.

[30] Mr. Harvey said the municipality has a package of information available to prospective purchasers pertaining to liens on the property up for sale. This type of information is required prior to making a bid because it affects the buyer's ability to make a profit, he said.

[31] "Yes, I did ask (about outstanding liens) but for no purpose other than my own," Mr. Harvey said.

[32] Given the property sold for "considerably more than it was worth I realized there was a substantial amount of money sitting there (surplus from the tax sale)," he said. It was at this point that Mr. Harvey realized the owner may not realize she could recoup any surplus, and he drove to the property the day after the sale to speak to her.

[33] Mr. Harvey said he explained to Ms. Mechetuk that the only way to recover the surplus was through the courts, and as such, he offered to act as her agent.

[34] Mr. Harvey denies conducting an investigation for money, adding he offered the information freely. Christina Mechetuk had the ability to act on that information herself, he said.

[35] A contract was signed. Ms. Mechetuk provided two contact names to Mr. Harvey in order to reach her once she'd vacated the property.

[36] Mr. Harvey said he contacted one of those individuals in order to reach Ms. Mechetuk in 2011 to have her attend a lawyer's office in Belleville to sign the necessary documentation to retrieve any surplus from the tax sale. Mr. Harvey said any balance paid after the sale is done through the district court, though any attempt to recover this money can only be done one year after the tax sale.

[37] "I don't provide information for money.... the information is provided freely and I offer to recover the funds. The overwhelming majority of people will say why do I need you, and they don't. I find a client and offer my services. This does not fit the definition (of private investigator)."

Crown's Submissions

[38] In submissions Crown Peter Sutton said the fact Mr. Harvey was going to use the information for his own personal use becomes irrelevant once he contacted Ms. Mechetuk and acted upon that information in order to obtain remuneration. Mr. Sutton said the statutory offence is one of absolute liability.

Defence Submissions

[39] Mr. Harvey said a private investigator is a person who conducts an investigation for remuneration, and he denies doing so...."the work I do is outside that... the information was given freely to her to pursue on her own. ... I got paid for acting as her agent which is entirely different from the definition of a private investigator."

Court's Finding

[40] The court was not provided with any case law on the subject, nor could it find any case law of its own accord to use as guidance in reaching a decision.

[41] The court finds Mr. Harvey to be a well-spoken and well-meaning individual who had conducted himself legally by investigating a potential business opportunity on a property tax sale, up to and including the point of making an unsuccessful bid. There is no doubt Mr. Harvey would not be before the court had the matter ended there.

[42] There is no doubt that Mr. Harvey's offer to assist by recouping any surplus from the tax sale was to Ms. Mechetuk's benefit. Even Det. Const. Lapointe admits it was unlikely Ms. Mechetuk would have been able to recover any surplus funds of her own accord. Whether it was worth half the total amount recovered to Ms. Mechetuk is a matter for civil court to decide.

[43] This court is tasked with determining whether or not Mr. Harvey fell afoul of the province's regulations by acting upon the information – which he legally gathered initially for his own purposes – to seek out and find both the 911 municipal address of the property, and its original owner, Ms. Mechetuk in order to present her with an offer to recoup any surplus for a fee.

[44] Clearly Mr. Harvey admits he was able through investigative techniques to deduce where the property was located, and who owned it.

[45] This is an absolute liability offence as defined by the words, "no person shall act as a private investigator," and it is clear Mr. Harvey "performed work, for remuneration, that consists primarily of conducting investigations in order to provide information."

[46] Simply put, either Mr. Harvey falls afoul of the law by failing to have a private investigator's licence as required by the act, or he does not. This was explained to Mr. Harvey prior to the trial.

[47] The Crown alleges the information in question that Mr. Harvey acted upon in order to be remunerated was the fact that Ms. Mechetuk was eligible to receive any surplus from the tax sale of her property. Mr. Harvey by contrast says he offered this information freely, and that Ms. Mechetuk was able to act upon said information, of her own accord.

[48] It is clear from the evidence before the court that Ms. Mechetuk was aware that the property had been sold, and equally clear that she had no concept that she was within her legal rights to recoup any surplus until Mr. Harvey informed her as such.

[49] Mr. Harvey admits it was apparent to him that Ms. Mechetuk did not have the wherewithal to put the information to use by herself; that he essentially knew that she would take advantage of his offer to collect any surplus from the tax sales, to be split 50-50.

[50] It is at this point, in the court's opinion that it becomes clear that Mr. Harvey was in contravention of provincial regulations since it was his "intent" to profit from the information he had collected.

[51] The dictionary definition of intent, as a noun, is "something that is intended; an aim or purpose, and under the law, "the state of one's mind at the time one carries out an action." Intent, as an idiom, is described as 'in every practical sense or practically.

[52] It is the court's finding that Mr. Harvey had the intention of making money from this venture given his assessment of Ms. Mechetuk's ability to recoup the money of her own volition.

[53] The court has been assured that any conviction on this charge will not affect Mr. Harvey's application to become a private investigator.

[54] The court finds the Crown has proven Mr. Harvey's guilt beyond a reasonable doubt, and there will be a finding of guilt and a conviction registered.

Released: November 8, 2012

"Justice of the Peace R. J. Le Blanc"